Without evidence, people are accused of piracy and ‘finished’ in R$ 3 thousand

It was a normal day in the life of communications student Julia (not her real name), 19, until she decided to check her emails. “I almost spit my coffee on the computer,” she recalls.

She had received an extrajudicial notice from a Brazilian office, representing the intellectual owners of a film she had allegedly downloaded – and would now have to “proportionately compensate the losses”.

“I didn’t download [esse filme]but even if I had, I wouldn’t pay,” Julia counters. Guided by friends, she ignored the message, but the fear remained. “I haven’t stopped using programs to download movies, but now I use a VPN [software que oculta o registro e a localização do computador] to assure me.”

Not everyone, however, has the cold blood of the student. Many believe the notification and, fearing the legal implications, end up paying. The practice became known on the internet as a “copyright troll”.

“I have no idea how they got to me,” says Roberto (not his real name), 45, who works in IT. “At least one of the movies on the list I had downloaded, but I always use VPN to download. I’m not a noobie [gíria para “novato” no universo geek]so they must have used some illegal method,” he says.

In fact, everything in this operation transits a gray area of ​​legality.

No evidence, only conviction

Despite the wave of recent reports, these notifications have been distributed since October 2020. At the time, more than 70,000 people were triggered. If each agreed to pay the suggested fine of BRL 3,000, the authors would have earned BRL 210 million.

“Someone saw an opportunity to make an easy profit, which had not yet been exploited, and decided to give it a try,” said, at the time, in a written statement, the Brazilian Pirate Party, an organization focused on Internet freedom and privacy protection (but which is not officially a political party).

The PPB was ready to offer free legal assistance to victims and remains, to this day, as one of the main watchdog groups against copyright trolls.

The recommendation is only one: “Ignore the messages, don’t do what they ask, don’t give in, don’t pay, don’t fall into the psychological game”, says the PPB on its website.

Paulo Rená, a professor and researcher specializing in digital law, agrees. “It is not safe to comply with such requests, made without proof of legitimate ownership of rights, and even without actual proof that the films have been downloaded,” he asserts.

Guilt at the registry office?

“The conduct in question is very well characterized with the name troll, because it is a strategic abuse, a threatening behavior that aims to cause terror”, adds Rená. “Troll” is internet slang for anonymous users with aggressive behavior.

The problem, in Brazil, lies in the other half of the name: “copyright”, the English term for intellectual property rights over an artistic work.

“Brazilian copyright law dates back to 1998. In other words, it is outdated, doesn’t talk about the internet or specifically mentions downloads,” says Raquel Saraiva, founder of the Recife Institute for Research on Law and Technology. Instead, the law refers to “reproduction”—as in copying and storing works.

André Houang, researcher at InternetLab and coordinator of the copyright section of Creative Commons Brazil, says that Congress has discussed updating the Copyright Law. However, these actions appear to be a test to see “how the authorities and the public will react, and then propose certain changes to the law in their interests”.

Anyway, movie downloading is still illegal, right?

“Using an intellectual work without the rights holder’s permission is illegal, but when it’s not for profit, it usually doesn’t turn into a lawsuit,” says Omar Kaminski, a lawyer specializing in the internet, new technologies and copyright.

Efforts are usually focused on those who profit from illegal downloads, through advertisements on websites where they are available or by charging for access to protected material.

Illegal data?

In a twist worthy of Hollywood, law firms may be breaking the law by accessing something that isn’t theirs. After all, how did they get the data on who supposedly downloaded the movies? Shouldn’t they be protected by the General Data Protection Act 2018?

In the letter sent to the defendants, the Kasznar Leonardos office claims they had been tracked because the downloaded files contained an anti-piracy feature called the GuardaLey Infringement Detection System, developed by Bunting Digital Forensics, a digital forensics consultancy.

However, there is no mention of this feature on the Bunting website. And GuardaLey, in fact, is another company, based in the United Kingdom. Tilt, Kasznar limited itself to sending a note, via the press office:

“Kasznar Leonardos Advogados informs that it provides legal advice to its clients and maintains a duty of confidentiality in relation to the information requested. Furthermore, it reiterates that the use of torrents to download and share unauthorized intellectual works is conduct that violates copyright , subject to penalties provided for in Brazilian law.”

For Yasodara Córdova, a privacy activist and researcher at the Ash Center for Democratic Governance and Innovation at Harvard, the explanation of how the firm obtained the data is not convincing.

“We have no way of accessing the forensic code and the evidence. We don’t have the ability to analyze whether there was fraud,” he explains. “They may have just tracked down some torrent-sharing blog and gone after whoever accessed them.”

According to the PPB, the law firm sued internet operator Claro SA, demanding that the company provide personal information related to IPs (the individual “address” of each computer).

In a joint note, the Consumer Defense Institute, the Recife Institute for Research in Law and Technology and other organizations criticized the telephone company for facilitating access to user data, in disregard of the LGPD.

consulted by tiltClaro claims that it “has complied with a court order from the São Paulo Court of Justice, under the terms of Law 12.965/14 (Marco Civil da Internet), which obliges the provider responsible for the custody to provide information requested by court order. Therefore, the operator provided solely and exclusively to the TJSP the determined information, which is then under the responsibility of the Justice.”

Still, for Kaminski, the method is subject to flaws.

“I’ve seen a lot of transcription errors in petitions and warrants. You only have to miss one digit of the IP to get the wrong person. Imagine the police knocking on your door with a warrant claiming that you are a promoter of pornography involving minors, because they got the wrong IP”, he says.

Target films

The letters seem to focus primarily on recent action movies such as Rambo Last Year (2019), Hellboy (2019) and Breaking In (2019).

It was the latter that led to a notification for Mario (not his real name), a marketing professional who has never seen the movie or even usually downloads torrents. “I’m not used to it. What I did was go to sites like Popcorn Time, which stream torrents,” he explained.

“At first it scared me a little, because it’s a letter from a law firm. Then I got more curious. Nowadays we deal with so many fake messages and emails that we’re kind of prepared for everything,” he said.

In his case, the office was Márcio Gonçalves Advogados. Like Kasznar, the firm did not return interview requests made by Tilt.

According to a spokesman for the Brazilian Pirate Party, in many cases the harassment is perpetuated for a long time, including renegotiations of the fine.

“They ask for the same R$3,000, but if the person doesn’t give in, the office tries to force agreements, calling, sending emails and even messages via WhatsApp, giving ‘deadlines’ and threatening with a lawsuit”, he says. “When they don’t get a response, they offer a new opportunity. We even heard that they offered deals for R$500.”

discarded method

In the US, individual copyright infringements rarely end up in court. The cost isn’t worth it, and it’s often the image of the rightholders that gets scratched – the big millionaire Hollywood studio chasing an ordinary person.

Rená explains that persecuting users is a “shot in the foot, because people would be in favor of those who download, because the law has no social support. It exists, it is in force, but it makes no sense.”

Houang agrees, noting that “several studies, including a recent one by the World Intellectual Property Organization, have shown that one of the best ways to combat piracy is to facilitate legal access to more online content,” and that the tactic employed by copyright trolls it is “as well as abusive and backward, inefficient.”

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